McNally v Spedding; Nobles v Spedding - [2004] NSWCA 400

CITATION: McNally v Spedding & anor; Nobles v Spedding & anor [2004] NSWCA 400

HEARING DATE(S): 28 September 2004

JUDGMENT DATE:
10 November 2004

JUDGMENT OF: Sheller JA at 1; Pearlman AJA at 2; Windeyer J at 3

DECISION: Leave to appeal in the case of McNally granted. Both cases to be referred back to the District Court for a new trial on the question of liability only as against the first respondent. No basis for finding of liability against second respondent.

CATCHWORDS: PRACTICE AND PROCEDURE- Appeal against judgment for defendants in District Court - whether trial judge erred in failing to consider a matter addressed to him - NEGLIGENCE - Duty of care - Duty to protect against criminal acts of third party - one appellant assaulted by patron of hotel prior to entering - where complaint made to manager about original attack and assailant identified on hotel premises - appellants left to knowledge of manager but appellants re-entered and were assaulted and injured - whether failure to remove assailant when originally identified gave rise to foreseeable risk of injury to other hotel patrons such that there was a duty to protect such persons against that risk - application of Modbury principle of control / special relationship

LEGISLATION CITED: Liquor Control Act 1987 (Vic)

CASES CITED: Ashrafi Persian Trading Co Pty Ltd t/as Roslyn
Gardens Motor Inn v Ashrafinia [2002] Aust Tort Reports 81-636
Club Italia (Geelong) Inc v Ritchie [2001] 3 VR 447
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479
Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91
Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254
Smith v Leurs (1945) 70 CLR 256

PARTIES :
Belinda McNally (Appellant in 40884 of 2003)
Nicole Nobles (Appellant in 40803 of 2004)
Douglas Spedding (First Respondent in both matters)
Win Bin Pty Limited (Second Respondent in both matters)

FILE NUMBER(S): CA CA 40884 of 2003; CA 40303 of 2004

COUNSEL: Mr P Beale, with him Mr E Chrysostomou (Appellants)
Mr P Newton (Respondents)

SOLICITORS: Pitcher Walton & Co (Appellants)
Colin Biggers & Paisley (Respondents)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S):
10455 of 2001; 10456 of 2001

LOWER COURT
JUDICIAL OFFICER : Finnane, DCJ

- 15 -

CA 40884 of 2003
CA 40303 of 2004

SHELLER JA
PEARLMAN AJA
WINDEYER J
WEDNESDAY, 10 NOVEMBER 2004.

BELINDA MCNALLY V DOUGLAS SPEDDING T/AS BALD FACE STAG HOTEL & ANOR

NICOLE NOBLES V DOUGLAS SPEDDING T/AS BALD FACE STAG HOTEL & ANOR

Judgment

1 SHELLER JA: I agree with Windeyer J

2 PEARLMAN AJA: I agree with Windeyer J

3 WINDEYER J: The court is dealing with two appeals from decisions of Judge Finnane in the District Court of New South Wales, in which he dismissed actions by the plaintiff in each action and entered judgment for the defendants. Although he found for the defendants he proceeded in his judgment to assess damages which he would have awarded had the actions succeeded. There…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 400
Decision Date: 10 November 2004

CaseChat Overview and Summary

McNally and Nobles (the appellants) appealed to the Court of Appeal of New South Wales against a judgment of the District Court which found in favour of Spedding (the first respondent) and another defendant (the second respondent). The dispute concerned injuries sustained by the appellants when one was assaulted by a patron of a hotel operated by the first respondent. The appellants had complained to the hotel manager about the initial assault and identified the assailant on the premises. Despite this, the appellants left the hotel, but subsequently re-entered and were assaulted again, suffering injuries.

The central legal issues before the Court of Appeal were whether the trial judge erred in failing to consider a specific matter raised by the appellants, and more broadly, whether the first respondent owed a duty of care to the appellants to protect them against the criminal acts of a third party. This involved determining whether the failure to remove the identified assailant after the initial complaint created a foreseeable risk of injury to other patrons, thereby giving rise to a duty to protect them. The court was required to consider the application of the principle established in *Modbury Triangle Shopping Centre Pty Ltd v Anzil* concerning a special relationship or a degree of control that might impose such a duty.

The Court of Appeal found that there was no basis for a finding of liability against the second respondent. However, regarding the first respondent, the court determined that the circumstances warranted a new trial on the question of liability. This suggests that the court considered the potential for a duty of care to have arisen, particularly in light of the identified assailant remaining on the premises after a complaint was made.

Leave to appeal was granted in the case of McNally, and both cases were referred back to the District Court for a new trial solely on the issue of liability as against the first respondent.

Orders

Orders of the court

Leave to appeal in the case of McNally granted. Both cases to be referred back to the District Court for a new trial on the question of liability only as against the first respondent. No basis for finding of liability against second respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McNally v Spedding & anor; Nobles v Spedding & anor [2004] NSWCA 400
HEARING DATE(S):	28 September 2004
JUDGMENT DATE:	10 November 2004
JUDGMENT OF:	Sheller JA at 1; Pearlman AJA at 2; Windeyer J at 3
DECISION:	Leave to appeal in the case of McNally granted. Both cases to be referred back to the District Court for a new trial on the question of liability only as against the first respondent. No basis for finding of liability against second respondent.
CATCHWORDS:	PRACTICE AND PROCEDURE- Appeal against judgment for defendants in District Court - whether trial judge erred in failing to consider a matter addressed to him - NEGLIGENCE - Duty of care - Duty to protect against criminal acts of third party - one appellant assaulted by patron of hotel prior to entering - where complaint made to manager about original attack and assailant identified on hotel premises - appellants left to knowledge of manager but appellants re-entered and were assaulted and injured - whether failure to remove assailant when originally identified gave rise to foreseeable risk of injury to other hotel patrons such that there was a duty to protect such persons against that risk - application of Modbury principle of control / special relationship
LEGISLATION CITED:	Liquor Control Act 1987 (Vic)
CASES CITED:	Ashrafi Persian Trading Co Pty Ltd t/as Roslyn Gardens Motor Inn v Ashrafinia [2002] Aust Tort Reports 81-636 Club Italia (Geelong) Inc v Ritchie [2001] 3 VR 447 Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479 Chordas v Bryant (Wellington) Pty Limited (1988) 20 FCR 91 Modbury Triangle Shopping Centre Pty Limited v Anzil (2000) 205 CLR 254 Smith v Leurs (1945) 70 CLR 256
PARTIES :	Belinda McNally (Appellant in 40884 of 2003) Nicole Nobles (Appellant in 40803 of 2004) Douglas Spedding (First Respondent in both matters) Win Bin Pty Limited (Second Respondent in both matters)
FILE NUMBER(S):	CA CA 40884 of 2003; CA 40303 of 2004
COUNSEL:	Mr P Beale, with him Mr E Chrysostomou (Appellants) Mr P Newton (Respondents)
SOLICITORS:	Pitcher Walton & Co (Appellants) Colin Biggers & Paisley (Respondents)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	10455 of 2001; 10456 of 2001
LOWER COURT JUDICIAL OFFICER :	Finnane, DCJ